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Supreme Court 22 March 2000

R v Bikic

[2000] NSWSC 223

Also reported as 112 A Crim R 163
Homicide
CRIMINAL LAW AND PROCEDURE DESIRE TO CALL CO ACCUSED TO SUPPORT HIS DEFENCE

Citation: R v Bikic [2000] NSWSC 223
Court: Supreme Court of New South Wales, Common Law Division
Date: 22 March 2000
Judge(s): Hidden J

Background

The applicant was one of several accused jointly charged with murder. He sought a separate trial on the basis that he intended to run an alibi defence and that at least four of his co-accused were willing to give evidence supporting that alibi.

An earlier application for a separate trial had been refused in December 1999, partly because no alibi notice had yet been filed and the nature of the defence remained unclear. By March 2000, an alibi notice had been filed and the application was renewed. The applicant's position was that he was not present at the scene of the shooting, nor at other relevant locations earlier that day.

The Crown opposed the application primarily on the ground that it was not made in good faith, arguing it was a tactical move to improve the applicant's prospects in a subsequent bail application, having previously been refused bail on several occasions.

  • Whether the desire of one accused to call co-accused as witnesses in support of an alibi defence constitutes a proper basis for ordering a separate trial
  • Whether the application was made bona fide, or was a tactical device to improve the applicant's bail prospects
  • How to balance the well-established policy in favour of joint trials against the interests of justice for the individual accused

Decision

Hidden J identified one substantive ground for the application: the applicant's wish to call co-accused who, once they had themselves been tried, would no longer face any jeopardy and could give evidence on his behalf. At a joint trial, those co-accused would not be compellable witnesses. Senior counsel for the applicant represented from the bar table that statements from four co-accused confirmed their willingness to give evidence supporting the applicant's alibi.

His Honour declined to examine the statements in sealed envelopes on the restricted basis proposed by the applicant's counsel, finding that any material relied upon must be available to the Crown for all purposes. However, the assurance from the bar table was treated as sufficient for the purposes of the interlocutory application.

On the bona fides challenge, Hidden J acknowledged that suspicion about the true purpose of the application was not unreasonable. He concluded, however, that any subsequent bail application would be dealt with on its merits, and the delay in coming to trial would itself be a relevant consideration in that context. That potential collateral benefit did not defeat the application.

Applying the test from Hunt J in R v Middis, the court was satisfied that there was a real risk, not merely a remote possibility, of positive injustice if the applicant were tried jointly. Waiting until the trial was under way to assess the position was considered undesirable, particularly given that a mid-trial remedy might require discharging the entire jury and starting again.

Orders Made

  • The applicant is to be tried separately from his co-accused and after they have been tried.

Key Takeaways

  • A desire by one accused to call co-accused as witnesses in their defence can constitute a proper basis for ordering a separate trial, provided there is sufficient material to establish that those co-accused are genuinely willing to give supportive evidence.
  • Assurances from the bar table by senior counsel, without access to sealed statements, were accepted as sufficient at the interlocutory stage to establish the genuineness of the application.
  • An applicant for a separate trial must demonstrate a real risk of positive injustice in a joint trial, not merely a remote possibility: the test drawn from Hunt J's reasoning in R v Middis.
  • Where co-accused witnesses would not be compellable at a joint trial, ordering a separate trial to be held after theirs is resolved may be the only means of securing their availability to the defence.
  • No Australian authority directly on point existed at the time of the decision; Canadian case law, particularly R v Boulet, provided the most relevant guidance on the governing principles.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- R v Middis & Ors (Hunt J, unreported, 27 March 1991)
- The Queen v Harbach (1973) 6 SASR 427
- R v Knijff (1982) QdR 429
- R v Quiring and Kuipers (1974) 19 CCC (2d) 337
- R v Agawa and Mallett (1975) 28 CCC (2d) 379
- R v Boulet (1987) 40 CCC (3d) 38